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Social Media – Understanding What You Post Can Be Used In Court

Feb 15, 2019 - Alerts by

Social media allows us to connect and share in ways that previously seemed unimaginable. But the ability to say whatever you want to whoever you want is not always a good thing. The internet is written in ink, and a single, thoughtless social media post could come back to haunt a health care provider in a medical malpractice case. Plaintiff’s attorneys will not hesitate to take a single post out of context to try to convince a jury that you have failed to meet the standard of care. We have seen posts shared out of frustration, humor, or sarcasm that the opposing side used to support claims that a health care provider did not care about his/her practice or more importantly patients. Very often, we have defenses as to the relevance of those social media posts. But by the time those defenses are raised, substantial damage has already been done. The better practice is to not give the plaintiff’s attorneys any material to misuse in the first place. You can take a few simple steps to avoid having your posts used against you.

First, limit who can see your profile.

If you are the sort of person who likes to share on social media, only share with people who have your best interests in mind. Do not allow the public to view your personal posts on Facebook, Twitter, Instagram, or any other social media outlet. If plaintiff’s attorneys are planning on suing you, one of the first things they will do is run an internet search of your name to see the content of your posts. Make sure they won’t be able to find anything when they do.

Second, do not post anything that could potentially be used to question your care or professionalism.

Before you post anything, ask yourself this question: How would this post look if it were taken out of context? Sarcasm does not always come through via social media posts. If you facetiously post that you hate your job, the opposing attorney would not hesitate to use that to argue that you literally hate your job and by inference your patients. As a general rule, you should avoid posting anything about work that is not positive or informational, but especially anything that could be used to reflect negatively on your character. Do not forget that this is equally applicable to simply liking or sharing posts by other people.

At the end of the day, the safest way to avoid having your social media used against you is to be conservative in your use thereof. Do not post your every thought, and avoid controversial or inflammatory content. If you decide to post, take steps to ensure that strangers are not able to access your posts. Much like the well-known Miranda warnings that you have seen on police dramas on television, anything you post on social media can be used against in a court of law. And more importantly, just like the Miranda warnings instruct: you have the right to remain silent. The less you post about your practice or social life, the better.

Lastly, a word on HIPAA and internet reviews.

More and more, we are seeing aggrieved former patients post negative reviews of their health care providers. You must be careful not to reply in any way that violates HIPAA. Don’t respond in a way that might identify an anonymous poster. Don’t respond in a way that reveals the patient’s medical history. In fact, even if a poster provides all of the details of treatment, you should not confirm that the person actually received treatment. Best practice is to never release patient information or confirm that a patient was actually seen. If you must reply, do so vaguely without reference to the individual patient and without confirming that the person was, in fact, a patient.

If you have questions on this topic or other legal medical matters, contact Gregory S. Young or Mark R. Maloney at 316.267.2000.

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